Opinion
No. 169, 2003, Def. ID No. 9510007098.
Submitted: March 24, 2006.
Decided: July 10, 2006.
Superior Court of the State of Delaware, in and for New Castle County in Cr. A. Nos. IN96-11-1973-1978, 1980-1987, 1989-1193.
Before HOLLAND, BERGER and JACOBS, Justices.
ORDER
This 10th day of July, 2006, upon consideration of the parties' briefs, the Superior Court's decision on remand, the parties' supplemental memoranda, and the Superior Court record, it appears to the Court that:
(1) In 1998, a Superior Court jury convicted the appellant, Kevin C. Brathwaite, of multiple counts of unlawful sexual intercourse and related sexual assaults. The Superior Court sentenced Brathwaite to several consecutive life sentences. On direct appeal, this Court affirmed.
Brathwaite v. State, 1999 WL 1090581 (Del.Supr.).
(2) In 1999, Brathwaite filed a motion for a new trial based on newly discovered evidence. Brathwaite also raised a related claim of ineffective assistance of counsel.
(3) The Superior Court appointed Jerome Capone, Esquire, to represent Brathwaite. Capone supplemented the motion for a new trial with a claim that the Superior Court had violated Brathwaite's constitutional right to represent himself.
(4) By decision dated March 17, 2003, the Superior Court denied the motion for a new trial, holding that Brathwaite had not met the standards for newly discovered evidence or ineffective assistance of counsel. The decision did not mention the alleged violation of Brathwaite's constitutional right of self-representation.
Counsel did not address the claim in post-hearing memoranda filed in the Superior Court.
(5) Brathwaite appealed the Superior Court's decision and was granted leave to proceed pro se. Because the Superior Court had not addressed Brathwaite's self-representation claim, this Court remanded, instructing the trial court to decide whether Brathwaite was denied the right to self-representation. By decision dated December 7, 2005, the Superior Court ruled that:
Mr. Brathwaite's right of self-representation was not denied by the Court. Simply put, it was not properly presented to the Court in the first instance and the Court declined to consider the same. Mr. Brathwaite knew of that rejection as well as why, and did not choose to assert or pursue that right as required by the rules of this Court and/or the applicable law.
We review the Superior Court's decision de novo.
Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
(7) Brathwaite was indicted in 1996. On March 3, 1997, Brathwaite filed a motion requesting "permission to exercise his constitutional right to proceed pro se." In his motion, Brathwaite complained that his rights were being violated, and that his efforts to bring several important issues to the court's attention were being ignored. Brathwaite stated that he would be more effective than his attorney, if allowed to represent himself.
(8) By memorandum dated March 7, 1997, the Superior Court referred Brathwaite's motion to his counsel, David Facciolo, Esquire, for "appropriate action." The March 7 referral memorandum advised:
Super Ct. Crim. R. 47 provides that "[t]he Court will not consider pro se applications by defendants who are represented by counsel unless the defendant has been granted permission to participate with counsel in the defense." Such permission has not been granted in this case.
See Del. Super. Ct. Crim. R. 47 (2006) (governing motions and pro se applications).
The Superior Court sent a copy of the referral memorandum to Brathwaite.
(9) Apparently in response to the court's memorandum, Brathwaite filed a "Motion to Participate with Counsel in the Defense" on March 21, 1997. The Superior Court referred that motion to Facciolo, as well. The Superior Court docket sheet does not reflect that any action was taken with respect to either motion.
(10) On December 3, 1997, Facciolo filed a motion to withdraw as counsel. By order dated December 15, 1997, the Superior Court granted the motion and appointed Thomas Foley, Esquire, to represent Brathwaite. Foley represented Brathwaite through trial and on direct appeal.
(11) In this appeal, Brathwaite claims that the Superior Court violated his right of self-representation when the court refused to consider his request to proceed pro se.
We reject the State's arguments that Brathwaite's motion to proceed pro se was equivocal on its face, and that it was "clarified" by his subsequent motion to participate with counsel in the defense. The record establishes that Brathwaite understood the court's referral memorandum to require that he obtain permission to participate with counsel before he could seek permission to proceed pro se.
(12) The right to counsel, embodied in the Sixth Amendment to the United States Constitution, has as its corollary the right to proceed pro se. In Delaware, the right to proceed pro se is specifically guaranteed by Article I, Section 7 of the Delaware Constitution.
United States v. Peppers, 302 F.3d 120, 129 (3d Cir. 2002) cert. denied, 537 U.S. 1062 (2002).
Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
(13) The right to counsel and the right to proceed pro se are mutually exclusive. A defendant has no constitutional right to combine the two. In Delaware, contrary to what was suggested by the Superior Court's referral memorandum in this case, a defendant seeking to assert the right to proceed pro se should not do so by seeking permission to participate with counsel in the defense. A motion to proceed pro se is properly "perfected" when filed with the court.
Hooks v. State, 416 A.2d 189, 198-99 (Del. 1980).
See In re Haskins, 551 A.2d 65, 66 (Del. 1988) (holding that a defendant does not have a right to hybrid representation) (citing Hooks v. State, 416 A.2d 189, 197-99 (Del. 1980)).
(14) Before a defendant can exercise the right to proceed pro se, a court must determine that the defendant has knowingly and voluntarily surrendered the concomitant right to counsel. A defendant may waive the right to self-representation after asserting it. Waiver may be established by a defendant's failure to reassert the request, if it would not be futile to do so.
Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
Buhl v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000).
See Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (holding that defendant's failure to renew request to proceed pro se constituted abandonment of the request and waiver of the issue) cert. denied, 531 U.S. 892 (2000); United States v. Johnson, 223 F.3d 665, 668-69 (7th Cir. 2000) cert. denied, 534 U.S. 829 (2001) (finding waiver when court inadvertently neglected to rule on a request to proceed pro se and defendant failed to reassert the request).
(15) Brathwaite contends that he was foreclosed from renewing his motion to proceed pro se by Facciolo, who told him in May 1997 that the motion had been denied and that he "should not bring it up again or the judge would get mad."
(16) The trial court discounted Brathwaite's contention for several reasons. First, Foley stated that Brathwaite seemed pleased to have Foley representing him. Second, Brathwaite admitted that he never told Foley that he was interested in proceeding pro se. Third, the court asked Brathwaite on at least one occasion whether he was satisfied with Foley's representation and Brathwaite indicated that he was.
(17) In short, the record reflects that Brathwaite never renewed his request to proceed pro se despite having the opportunity to do so — either privately with his new counsel, or in open court when questioned about Foley's representation. Under these circumstances, the only plausible explanation for Brathwaite's conduct is that he waived the right to proceed pro se in favor of exercising his constitutional right to counsel.
See Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992) (stating that "defendants forfeit self-representation by remaining silent at critical junctures before or during trial") cert. denied, 507 U.S. 930 (1993).
(20) We next consider Brathwaite's appeal from the denial of his motion for a new trial. The Court reviews the denial of a motion for a new trial for an abuse of discretion.
Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).
(21) After careful consideration of the parties' briefs, we find it manifest that the judgment of the Superior Court should be affirmed on the basis of the well-reasoned decision dated March 17, 2003. In that decision, the Superior Court applied the proper legal standard and concluded that Brathwaite failed to satisfy any of the requirements for receiving a new trial on the basis of newly discovered evidence. The Superior Court also correctly applied the settled standard governing ineffective assistance of counsel claims. Although Brathwaite now contends that he was not claiming that his counsel was ineffective, his motion expressly states that, "counsel's performance fell below the professional standard in not calling witnesses and putting on the only viable defense available. . . ."16 Thus, we reject Brathwaite's attempt to delete his ineffective assistance of counsel claims from consideration on appeal.
NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior Court are AFFIRMED.